United States Court of Appeals: Published

PUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHADRICK EVAN FULKS,
Defendant-Appellant.
No. 04-33
Appeal from the United States District Court

for the District of South Carolina, at Florence.
Joseph F. Anderson, Jr., Chief District Judge.
(CR-02-992)
Argued: May 23, 2006
Decided: July 27, 2006
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in

which Judge Widener joined. Judge Williams wrote a concurring
opinion.
COUNSEL
ARGUED: John Henry Blume, III, CORNELL LAW SCHOOL, Ithaca, New York, for Appellant. Scott Newton Schools, Assistant
United States Attorney, EXECUTIVE OFFICE FOR U.S. ATTORNEYS, Washington, D.C., for Appellee. ON BRIEF: Keir M. Weyble, BLUME & WEYBLE, L.L.C., Columbia, South Carolina;
William F. Nettles, IV, Assistant Federal Public Defender, OFFICE
UNITED STATES v. FULKS
OF THE FEDERAL PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Reginald I. Lloyd, United States Attorney, Jonathan S. Gasser, Assistant United States Attorney, John C. Duane,
Assistant United States Attorney, C. Todd Hagins, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
OPINION
KING, Circuit Judge:
Chadrick Evan Fulks appeals from the death sentence imposed on
him in the District of South Carolina on his federal convictions for
carjacking and kidnapping resulting in the death of Alice Donovan in
2002. By this appeal, Fulks makes seven contentions of error, each of
which relate to his 2004 capital sentencing trial in Columbia: (1) the
district court erroneously permitted the prosecution to present testimony from two witnesses not included on its pretrial witness list; (2)
the court abused its discretion in qualifying three jurors who were
unconstitutionally prone to impose the death penalty; (3) the court
abused its discretion in denying Fulks a new trial on the basis of a
jurors failure to disclose during voir dire that her first husband had
been murdered; (4) the court abused its discretion in qualifying two
jurors whose life experiences rendered them incapable of impartially
deciding Fulkss case; (5) the court abused its discretion in excluding
testimony concerning three polygraph examinations of Fulks; (6) the
court abused its discretion in permitting Donovans sister to read to
the jury a 1990 letter that Donovan had written her; and (7) the court
erred in concluding that the relaxed evidentiary standard applicable to
capital sentencing proceedings is constitutional. As explained below,
we reject these contentions and affirm.
I.
A.
Fulks, who grew up in the tri-state area around Huntington, West
Virginia, began dating an exotic dancer named Veronica Evans in
April 2002. Shortly thereafter, Fulks, who was then twenty-five years
old, began living with Evans and her three-year-old son Miles in the
eastern Kentucky community of Lewisburg. On June 11, 2002, Fulks
and Evans were married. Fulks supported his new family in the same
way he had supported himself for years by breaking into cars and
stealing. And as he had with other women, Fulks often became violent with Evans, sometimes beating her severely and assaulting her
sexually.
On August 25, 2002, Fulks directed Evans to use a stolen credit
card to buy a necklace at a Wal-Mart in Madisonville, Kentucky.
Upon entering the store, Evans reported to police that Fulks was in
the parking lot with a gun and that she was afraid he would kill her.
The police responded and searched Evanss car, discovering, among
other things, stolen credit cards and a pistol. The officers subsequently arrested Evans and Fulks and transported them to the Hopkins
County Detention Center (the "HCDC"). Three-year-old Miles was
placed in foster care. On August 27, 2002, Evans agreed to cooperate
with the government and was released from the detention center. On
the basis of evidence seized from their home, Fulks was ultimately
charged with twelve counts of credit card fraud in Hopkins County,
Kentucky.
Branden Basham had been housed at the HCDC on bad check
charges for over a year when Fulks arrived in late August 2002.
According to guards at the prison, Basham was disruptive and annoying, often pestering his fellow inmates. In order to protect him from
other prisoners, Basham was frequently reassigned cell mates, and, in
mid-October 2002, he was placed in a cell with Fulks. On November
3, 2002, after about two months in custody, the Kentucky State Police
served Fulks with an indictment charging him with first degree abuse
of a child aged twelve years or younger (Miles). The next evening,
at approximately 6:30 p.m., a jailer released Fulks and Basham, at
Bashams request, into an outdoor recreation area. The jailer became
diverted administering medication to other inmates, and when she
returned at about 8:00 p.m. to check on Fulks and Basham, they were
gone. They had escaped from the HCDC through the ceiling of the
recreation area by using a makeshift rope made of blankets and
sheets.
By the following day, November 5, 2002, Fulks and Basham had

made their way on foot to the residence of James Hawkins, about
eight to twelve miles from the HCDC. Basham approached the residence and, after using the phone, persuaded Hawkins to drive him and
Fulks to a nearby convenience store. Shortly after departing from the
house, Hawkins agreed to drive Fulks and Basham to their car, which
they claimed to be located about forty miles away in Robards, Kentucky. At some point, Basham pulled a knife on Hawkins, and Fulks
ordered Hawkins to pull to the side of the highway so that Fulks could
drive. Soon thereafter, Fulks stopped the truck on a remote state road,
intending to abandon Hawkins. Basham started to tie Hawkins to a
tree, but Fulks, dissatisfied with Bashams effort, soon took over the
job. Once Fulks was convinced that Hawkins would be unable to
escape, he and Basham departed in Hawkinss truck. Hawkins freed
himself some fifteen hours later, hailed a passing motorist, and called
the police. According to Hawkinss testimony at trial, although
Basham held him at knifepoint throughout the carjacking incident,
Fulks remained in charge, with Basham merely following Fulkss
orders.
After leaving Hawkins, Fulks and Basham drove to Portage, Indiana, where, on November 6, 2002, they abandoned Hawkinss truck
at a hotel and proceeded on foot to a trailer shared by Tina Severance
and Andrea Roddy. Fulks had met Severance at the Westville (Indiana) Correctional Institute in 2001, while he was serving time there
and she was working as a correctional officer. After a few hours in
the trailer, Fulks and Basham became very nervous, and the four of
them (Fulks, Basham, Severance, and Roddy) travelled in Severances van to the Sands Motel in northern Indiana, where they spent
the next two nights. At some point while at the Sands Motel, Fulks
told Severance that he had escaped from prison because he feared a
lengthy prison sentence on the pending child abuse charges. During
their second night at the Sands Motel, Fulks asked Severance if she
knew where they could obtain firearms. She replied that a friend,
Robert Talsma, kept firearms at his home in nearby Michigan City,
Indiana. On the morning of November 8, 2002, in accordance with a
preconceived plan, Severance and Roddy lured Talsma away while
Fulks and Basham broke into his home and stole several firearms, as
well as a ring and some checks.
The four of them then drove Severances van to Sturgis, Michigan,

where they rented a motel room. Basham and Roddy spent the night
of November 8, 2002, at the motel, while Fulks and Severance spent
that night in Goshen, Indiana, smoking marijuana and methamphetamine with Fulkss brother, Ronnie Fulks. The next day, Fulks and
Severance returned to the Sturgis motel to find Basham crouched on
the floor holding a gun. Apparently convinced that the authorities had
caught up with them, Basham was highly agitated, repeatedly asserting that he was going to shoot a police officer. He eventually calmed
down, and the four then drove to the Indiana home of Ronnie Fulks,
where they spent the night.
On November 10, 2002, Fulks, Basham, Severance, and Roddy,
with Fulks driving Severances van, travelled to Piketon, Ohio, where
they checked into a Town and Country Motel. They then drove to a
nearby Wal-Mart, where Basham wrote bad checks for items that
Roddy later returned for cash. Also on November 10, 2002, at a KMart in Piketon, Ohio, Fulks met a young woman with a butterfly tattoo (later determined to be Heather Jacobi) with whom he used drugs.
On that same date, Fulks stole a purse and cell phone belonging to
nineteen-year-old Amy Ward from a vehicle parked at a Wal-Mart in
Waverly, Ohio. On the following day, Fulks, Basham, Severance, and
Roddy drove to Kenova, West Virginia, and rented a room at the Hollywood Motel. Fulks and Basham then left the motel, not to return
until the early morning hours of November 12, 2002.
According to statements Fulks made to the FBI in 2003, after he
and Basham left the Hollywood Motel on November 11, 2002, they
smoked methamphetamine and then drove to the Barboursville Mall,
near Huntington, West Virginia, intending to break into cars and steal
purses. When they arrived at the mall, they split up. The next time
Fulks saw Basham, he was driving a car up and down the rows of the
parking lot and yelling Fulkss name. In the passenger seat was the
owner of the car, a nineteen-year-old Marshall University student
named Samantha Burns. After spotting Basham, Fulks returned to
Severances van and followed Basham and Burns to a Foodland grocery store, where Fulks left the van and began driving Burnss car.
They then visited several automatic teller machines and withdrew
cash from Burnss account. They later returned to the Foodland to
retrieve the van, at which point Basham announced that he wanted to
find a place to rape Burns. Fulks then followed Basham in Severances van to a secluded area by the Ohio River. Fulks parked some
distance from Burnss car, and in such a way that his view of the passenger side of the car was obstructed. He observed Basham exit the
drivers side of the car and walk around to the passengers side. He
saw nothing else until about twenty minutes later when Basham
alone drove Burnss car to where Fulks was parked and informed
Fulks that he wanted to burn the vehicle in order to remove any fingerprints. After buying gasoline, Basham set fire to Burnss car on a
rural road near Lavalette, West Virginia, and he and Fulks returned
to the Kenova motel. From that point forward, Basham wore, on a
chain around his neck, a heart-shaped ring that was later determined
to belong to Burns. Although both Fulks and Basham have admitted
that Burns is dead, her body has never been recovered.1
On November 12, 2002, Fulks, Basham, Severance, and Roddy
drove the van to Little River, South Carolina, where Fulks had lived
during the late 1990s. During their trip to Little River, Basham repeatedly taunted Severance by asking whether she wanted to go "swimming" in the Ohio River. Fulks eventually ordered Basham to stop
teasing Severance, and Basham complied. When the four of them
arrived at Little River, they checked in at the Lake Shore Motel. Fulks
and Basham spent the following day, November 13, 2002, breaking
into cars and stealing purses. On November 14, the four left Little
River for the Beach Walk Hotel in Myrtle Beach, South Carolina.
After checking in, Fulks and Basham left the hotel in Severances
van.
At around 2:00 p.m. on November 14, 2002, Carl Jordan stumbled
upon Fulks and Basham burglarizing his sons residence outside Conway, South Carolina. According to Jordan, both Fulks and Basham
fired gunshots at him, with Fulks shooting out the back window of
Jordans truck.2 Jordan then attempted to retreat in his truck, with
1
In connection with Burnss death, Basham and Fulks each received

sentences of life imprisonment in the Southern District of West Virginia,
after pleading guilty to the federal offense of carjacking resulting in
death, in contravention of 18 U.S.C. 2119.
2
A defense expert testified at trial that the trajectory of the bullet that
shattered the window of Jordans truck belied Jordans belief that Fulks
had fired the shot.
Fulks and Basham following in Severances van. Fulks and Basham

eventually gave up the chase, abandoned Severances van, and stole
a white pickup truck. They then made their way to a Wal-Mart store
in Conway, South Carolina, where, according to Fulkss 2003 statements to the FBI, they planned to steal a car.
At 2:37 p.m. that same day, a Wal-Mart surveillance camera
recorded a blue BMW driven by Alice Donovan enter the Wal-Mart
parking lot, with Fulks and Basham following closely behind. As
Donovan parked, Basham exited the truck and approached the BMW
while Fulks circled the row of vehicles and parked opposite the
BMW. Both vehicles then began moving again, travelling outside the
range of the cameras. Fulks soon abandoned the pickup truck and
began driving the BMW, with Basham and Donovan in the back seat.
After leaving the Wal-Mart parking lot, Fulks and Basham made several (some successful) attempts to withdraw money from Donovans
account at various automatic teller machines. At some point, they
crossed into North Carolina and stopped at a cemetery, where first
Basham and then Fulks raped Donovan. According to Fulkss statements to the FBI, he did not want to rape Donovan but felt pressure
from Basham to do so. They then reentered South Carolina and,
according to Fulks, Basham ordered him to stop along a dirt road so
that they could leave Donovan tied up, in order to prevent her from
contacting the authorities. Fulks complied with this request and
Basham, carrying a gun but no rope or tape that Fulks could see,
began leading Donovan away from the car. Donovan implored Fulks
to convince Basham to leave the gun in the car, but Basham refused
to do so. Basham then led Donovan into the woods and out of Fulkss
sight. He returned twenty minutes later, alone. As with Burns, both
Fulks and Basham have admitted that Donovan was killed, but her
body has never been found.
Fulks and Basham then returned to the Beach Walk Hotel in Myrtle
Beach, where they informed Severance and Roddy that the police
were in possession of the van, and that Fulks and Basham needed to
return to West Virginia alone. According to Fulks, it was on their
return journey to West Virginia that Basham first informed him that
he had killed Burns and Donovan. On November 15, 2002, Fulks and
Basham arrived in Huntington, West Virginia, and spent the next two
nights smoking crack cocaine at the residence of Beth McGuffin, a
friend of Fulks. McGuffin testified that, during the time she spent
with Fulks and Basham, Fulks controlled what he and Basham did.
Two days after arriving at McGuffins home, on November 17,
2002, Fulks and Basham drove to the Ashland Mall in nearby Ashland, Kentucky, where they planned to break into cars. At around 7:30
p.m., in the Ashland Mall parking lot, Basham attempted to carjack
Deanna Francis and her fifteen-year-old daughter. After Francis
reported the incident, a police officer spotted Basham and began to
pursue him on foot. Basham initially eluded the officer by running
behind some railcars, but he was apprehended at around 9:00 p.m.
that evening, hiding across the railroad tracks in the Ohio River.
Fulks returned to McGuffins home late that same evening and was
there when the television stations reported Bashams arrest. The following day, November 18, 2002, Fulks left Huntington in Donovans
BMW for his brothers home in Goshen, Indiana. That evening, an
Ohio State Trooper, having observed the BMW and ascertained that
it was stolen, attempted to apprehend Fulks at a rest area near Marion,
Ohio. Following a highway chase reaching speeds of 130 miles per
hour, Fulks narrowly escaped. He arrived at his brothers home in
Indiana on the evening of November 19, 2002, and, on the morning
of November 20, 2002, hid the BMW in a barn near Bristol, Indiana.
Police officers had earlier set up a surveillance operation at Fulkss
brothers home and, on the afternoon of November 20, 2002, after a
brief foot chase, Fulks was finally apprehended.
B.
1.
Fulks and Basham were initially indicted in the District of South
Carolina on December 17, 2002. On April 23, 2003, the grand jury
returned a superseding indictment charging Fulks and Basham with
eight separate offenses and setting forth special findings supporting
the imposition of the death penalty on the first two counts: carjacking
resulting in Donovans death (18 U.S.C. 2119), and kidnapping
resulting in Donovans death (18 U.S.C. 3571).3
3
In addition to the carjacking and kidnapping offenses, Fulks and

Basham were indicted for the following offenses: (1) interstate transpor-
On September 12, 2003, the prosecution notified Fulks and

Basham of its intention to seek the death penalty against them on the
carjacking and kidnapping counts. Thereafter, on January 29, 2004,
the district court granted Fulks and Basham a trial severance. On
March 5, 2004, the court issued an order denying, inter alia, Fulkss
motion to strike the death penalty on the basis that the Federal Death
Penalty Act, in rendering the Federal Rules of Evidence inapplicable
to capital sentencing proceedings, contravened constitutional due process.
On May 4, 2004, Fulks tendered pleas of guilty to all eight counts
in the superseding indictment. With regard to the carjacking and kidnapping counts on which the prosecution was seeking the death penalty, Fulks admitted in the plea colloquy to raping Donovan but
disclaimed any knowledge of or participation in her murder. The substance of his admission tracked his 2003 statements to the FBI, in
which he generally admitted his involvement in the crime spree but
claimed that Basham had killed both Burns and Donovan without his
knowledge. The district court accepted Fulkss guilty pleas on May
7, 2004.
On May 10, 2004, the prosecution, as required by 18 U.S.C.
3432, provided Fulks with a list of the names and addresses of 181
potential trial witnesses. Among those potential witnesses was Amy
Ward, whose purse and cell phone Fulks had stolen on November 10,
2002, in Waverly, Ohio. On May 21, 2004, defense investigator Pete
Skidmore met with Amy Ward and her mother, Donna Ward, seeking
to determine whether Amy was the young woman with the butterfly
tattoo with whom Fulks had used drugs during the escapade. At this
meeting, Donna advised Skidmore that she had received a phone call
on November 17, 2002, from a man purportedly seeking to meet with
tation of a stolen motor vehicle (18 U.S.C. 2312); (2) conspiracy to
commit numerous offenses, including carjacking and kidnapping (18
U.S.C. 371); (3) conspiracy to use firearms in furtherance of a crime
of violence (18 U.S.C. 924(o)); (4) use of a firearm during and in relation to a crime of violence (18 U.S.C. 924(c)(1)(A)); (5) being felons
in possession of firearms (18 U.S.C. 922(g)(1)); and (6) possession of
stolen firearms (18 U.S.C. 922(j)).
10
Amy at a local hardware store that evening at 10:30 p.m. to discuss

her recent job application with the store. Donna, knowing that Amy
had submitted no such job application, became suspicious, but when
she attempted to ascertain the callers identity, he hung up. Donna
also told Skidmore at the May 21, 2004 meeting that she believed the
caller to be the same person who had stolen Amys purse and cell
phone. Although Skidmore claims he notified Fulkss lawyers of the
November 17, 2002 phone call to Donna Ward, they have no such
recollection.
Jury selection was conducted in the district court from May 10 to
May 21, 2004. As relevant here, Fulks challenged for cause
venirepersons Richard Goehring, Lisa Harvey, and Sylvia Allison on
the ground that the strength of their beliefs in favor of the death penalty rendered each of them unwilling to consider any mitigating evidence that he would offer. Fulks also challenged for cause
venirepersons Joni Novinger and Elizabeth Plyler, contending that
their personal experiences rendered them incapable of impartially
serving on his jury. Specifically, Fulks asserted that Novingers ability to be impartial was impaired by the fact that her sister had been
the victim of a sexual assault, and that Plylers impartiality was
impaired because she and her daughter were roughly the same ages
(respectively) that Donovan and Burns had been when they were
killed. The district court rejected each of these challenges and qualified these five venirepersons over Fulkss objections.
2.
Fulkss sentencing trial commenced on June 1, 2004, with the prosecutions opening statement. In its opening, the prosecution, anticipating Fulkss strategy of casting Basham as the leader of their crime
spree and the actual murderer, forecast the evidence it would introduce to demonstrate that Fulks played an active, if not leading, role
in the entire criminal enterprise. Among other things, the prosecution
advised the jury that it would hear evidence that the crime spree
touched on places with which Fulks not Basham was familiar,
that shortly after their prison escape Fulks had asked Severance where
he could obtain guns, that Fulks had tied Hawkins to the tree where
he was abandoned, and that both Fulks and Basham had fired at Jordan when he discovered them burglarizing his sons residence.
11
In response, defense counsel countered in its opening statement

with a forecast of the evidence it planned to present, suggesting that
Basham rather than Fulks was the leader, instigator, and killer.
For example, defense counsel advised the jury it would learn that
Basham had lured Hawkins from his home and held him at knifepoint,
had carried a gun throughout the crime spree, had expressed his intention of killing a police officer while in the Sturgis motel room, had
asked Severance whether she wanted to go "swimming" in the Ohio
River the day after Burns was murdered, and had worn Burnss ring
around his neck. In addition to the evidence depicting Basham as the
leader, defense counsel outlined its case for mitigation, explaining
that the jury would hear that Fulks was a victim of Fetal Alcohol
Spectrum Disorder, and had been raised in abject poverty by alcoholic, abusive parents who neglected his education, encouraged criminality, and failed to provide him with the basic necessities of life.
Finally, in tying its two main points together, defense counsel asserted
that once the jury learned more of Fulkss life, background, and criminal history, it would understand that the murders of Donovan and
Burns were not crimes Fulks would have committed on his own.
On June 2, 2004, prior to the commencement of the prosecutions
case-in-chief, the court granted the prosecutions motion to exclude
testimony concerning three privately administered polygraph examinations, the results of which indicated that Fulks had truthfully disclaimed knowledge of, or participation in, the murders of Burns and
Donovan. The prosecution then presented testimony from the first of
approximately a hundred witnesses that it called during its three-week
presentation of evidence.
Amy Ward, who was scheduled to testify on June 11, 2004, arrived
in South Carolina on June 10, accompanied by her father Byron
Ward. Just prior to Amys testimony, Byron, while engaged in small
talk with FBI Agent Jeff Bruning, mentioned the November 17, 2002
phone call his wife Donna had received regarding Amys purported
job application at the hardware store. Agent Bruning soon began
investigating whether the call could be traced to Fulks, and, with the
assistance of the Sprint telephone company, discovered that the phone
call had been placed using a prepaid phone card found in Fulkss possession at his arrest. With further investigation, it was established that
the call had been placed at 8:38 p.m. on November 17, 2002. Because
12
Basham was hiding from the police in the Ohio River at that very
moment, the timing of the call appeared to conclusively establish that
Fulks, acting alone, had placed the call. On June 17, 2004, the court
ruled that Donna Ward and Agent Bruning could testify regarding the
call even though they had not been included on the prosecutions pretrial witness list. The court then offered Fulks a three-day trial hiatus
so that he could prepare to meet their testimony, but Fulkss counsel
declined the offer, stating that a three-day recess would be useless at
that point in the trial.
The prosecutions final witness, presented on June 22, 2004, was
Donovans sister Judy Ezell. Ezell, a victim impact witness, primarily
testified concerning the sexual abuse she and Donovan had suffered
as children at the hands of their father. Over Fulkss objection, the
court permitted Ezell to read to the jury a letter Donovan had written
to her, congratulating her on confronting their father about the abuse
and explaining that Donovan had decided to leave her abusive husband and start a new life.
Fulks presented testimony to the jury from June 22 to June 25,
2002. That testimony consisted primarily of mitigating evidence,
detailing Fulkss miserable childhood as well as his asserted mental
deficiencies. Fulks also presented the testimony of Heather Jacobi and
Pete Skidmore, through which Fulks attempted to explain that, by his
November 17, 2002 call to Donna Ward, he was not trying to lure a
new victim (Amy Ward), but rather was attempting to locate the
young woman with the butterfly tattoo with whom he had used drugs.
Jacobi, the young woman with the butterfly tattoo, testified that she
had met Fulks in November 2002 at a K-Mart parking lot in Portsmouth, Ohio, a city about thirty miles from Waverly, Ohio, where
Fulks, on November 10, 2002, had stolen Amy Wards purse and
phone from her car. Skidmores testimony served largely to corroborate what Jacobi had said.
The parties delivered their closing arguments to the jury on June
29, 2004. On the following day, the jury returned a unanimous verdict, recommending that Fulks be sentenced to death on both the carjacking and kidnapping counts.
13
3.
Shortly after the verdict was announced, defense counsel first
learned by virtue of a July 1, 2004 article on Fulkss trial in the
Myrtle Beach Sun News that juror Allisons husband had been
murdered in 1971, six weeks after the couple had been married and
while she was pregnant with their child. Prior to jury selection, Allison, along with all other prospective jurors, was required to complete
a written juror questionnaire. As relevant here, Allison left blank
Question 42, which inquired into whether she or any close relatives
had been a crime victim.
On July 9, 2004, Fulks moved for a new trial on the basis of Allisons failure to disclose her husbands murder. On July 16, 2004, the
district court conducted a hearing to ascertain whether Allison had
been actually biased against Fulks or whether the circumstances surrounding her husbands murder and her failure to disclose it warranted a finding of implied bias. At the hearing, Allison testified that
her failure to answer Question 42 was inadvertent. She asserted that
her selection for the jury surprised her and that she had hoped her
husbands murder would lead to her being dismissed from the venire.
When asked by the court whether there was "even any remote possibility" that her husbands murder "had some influence in [her] deliberations," Allison responded, "None at all." J.A. 3046.
On December 20, 2004, the district court denied Fulkss motion for
a new trial and imposed sentence: death on the kidnapping count, a
separate sentence of death on the carjacking count, and a total of 744
months in prison on the remaining six counts, to run consecutively to
the two death sentences. Fulks has timely noted this appeal, and we
possess jurisdiction pursuant to 28 U.S.C. 1291.
II.
By this appeal, Fulks makes seven contentions: (1) the district
court committed reversible error in permitting the prosecution to present the testimony of Amy Ward and Agent Bruning despite its failure
to include them on the pretrial witness list furnished to Fulks; (2) the
court abused its discretion in qualifying jurors Goehring, Harvey, and
Allison, each of whom Fulks asserts were unconstitutionally prone to
14
impose the death penalty; (3) the court abused its discretion in denying Fulks a new trial on the basis of juror Allisons failure to disclose
her husbands murder; (4) the court abused its discretion in qualifying
jurors Novinger and Plyer, whose personal experiences assertedly
rendered them biased against him; (5) the court abused its discretion
in excluding evidence regarding the results of three polygraph examinations of Fulks, which indicated that Fulks had truthfully disclaimed
knowledge of and participation in the murders of Burns and Donovan;
(6) the court abused its discretion in permitting Donovans sister Judy
Ezell to read to the jury the 1990 letter Donovan had written to her
concerning the abuse she had suffered at the hands of her father and
first husband; and (7) the court erred in upholding the constitutionality of the relaxed evidentiary standard applicable to capital sentencing
proceedings. We assess each of these contentions in turn.4
A.
Fulks first contends that the district court committed reversible
error in allowing the prosecution to present the trial testimony of
Donna Ward and Agent Bruning, neither of whom were included on
the pretrial witness list it provided to Fulks pursuant to 18 U.S.C.
4
In addition to analyzing each of Fulkss appellate contentions, we are

obliged to "review the entire record" and consider two issues not raised
by him: (1) whether his sentence "was imposed under the influence of
passion, prejudice, or any other arbitrary factor;" and (2) whether the evidence supports the jurys "special finding of the existence of an aggravating factor required to be considered under section 3592." See 18 U.S.C.
3595. Accordingly, we have reviewed the entire record in this case,
including "the information submitted during the sentencing hearing[,] . . .
the procedures employed in the sentencing hearing[,] and . . . the special
findings returned under section 3593(d)." See 3595(b). On the basis of
such review, we conclude that Fulkss sentence was not imposed under
the influence of passion, prejudice, or any other arbitrary factor. Indeed,
the record reflects that the trial court conducted the proceedings in an
exemplary manner, maintaining decorum and ensuring fairness throughout. And we similarly conclude that the evidence supports the jurys special finding that Donovans death, or the injury that caused her death,
occurred during Fulkss "commission or attempted commission of, or
during his immediate flight from[ ] his commission of[,] a kidnapping."
See J.A. 2960; see also 3592(c)(1).
15
3432. See United States v. Fulks, CR-02-992 (D.S.C. June 23,

2004). Although no court has yet determined the standard of appellate
review applicable to a trial courts decision to permit the testimony
in a capital case of a witness not included on the prosecutions pretrial
witness list, decisions regarding whether a witness should be allowed
to testify are generally reviewed for abuse of discretion. See Bristol
Steel & Iron Works, Inc. v. Bethlehem Steel Corp., 41 F.3d 182, 18889 (4th Cir. 1994) (observing that decision to allow witness to testify
even though his identity had not been revealed before trial reviewed
for abuse of discretion); see also United States v. Moreland, 437 F.3d
424, 430 (4th Cir. 2006) (noting that decision to allow expert testimony is reviewed for abuse of discretion); United States v. Scheetz,
293 F.3d 175, 184 (4th Cir. 2002) (observing that restriction on crossexamination is reviewed for abuse of discretion); United States v.
Montgomery, 262 F.3d 233, 244 (4th Cir. 2001) (noting that refusal
to allow testimony from witness who violates sequestration order is
reviewed for abuse of discretion). We see no reason to apply a different standard of review in this case, especially since any error of law
in the district courts application of 3432 would constitute an abuse
of discretion. See United States v. Ebersole, 411 F.3d 517, 526 (4th
Cir. 2005) (observing that, "[b]y definition, a court abuses its discretion when it makes an error of law" (internal quotation marks omitted)).
1.
Pursuant to 3432 of Title 18, the prosecution was obliged to furnish Fulks with a witness list at least three days before his sentencing
trial began. More specifically, 3432 provides:
A person charged with treason or other capital offense shall
at least three entire days before commencement of trial be
furnished with a copy of the indictment and a list of the
veniremen, and of the witnesses to be produced on the trial
for proving the indictment, stating the place of abode of
each venireman and witness, except that such list of the
veniremen and witnesses need not be furnished if the court
16
finds by a preponderance of the evidence that providing the

list may jeopardize the life or safety of any person.5
As the Supreme Court explained many years ago in its leading case
on this provision, the purpose of 3432 is "to inform the defendant
of the testimony which he will have to meet, and to enable him to prepare his defence." Logan v. United States, 144 U.S. 263, 304 (1892).
In other words, 3432 is designed to prevent trial by ambush where
a defendants life is at stake.
Fulks first asserts that, in a capital sentencing trial, 3432 categorically precludes the testimony of any witness not included on the prosecutions pretrial list and that permitting such testimony constitutes
per se reversible error. In support of this proposition, Fulks relies on
our decision in Hall v. United States, where we observed that
"[p]rovision for [the] capital list is mandatory, and failure to provide
it in a capital case is ordinarily reversible error." 410 F.2d 653, 660
(4th Cir. 1969); see also United States v. Lee, 374 F.3d 637, 651 (8th
Cir. 2004) (citing Hall for same proposition); United States v. Crowell, 442 F.2d 346, 348 (5th Cir. 1971) (concluding that failure to
provide witness list is "plain error"); Amsler v. United States, 381
F.2d 37, 45 (9th Cir. 1967) (same). In this case, however, the prosecution did not fail to timely provide Fulks with a pretrial witness list;
indeed, it provided Fulks with the list of witnesses a full three weeks
prior to trial. Instead, the prosecution sought to present the testimony
of two witnesses it discovered only after it had provided Fulks with
the witness list and after the deadline for providing the list had
expired. Whether the prosecution should be permitted to present the
testimony of these after-discovered witnesses is a question on which
3432 is silent.
5
As 3432 makes clear, the prosecution is not required to provide the

list if the court finds that provision of the list would endanger any person.
And the Supreme Court has recognized that 3432 does not require the
prosecution to include rebuttal witnesses on the list. See Goldsby v.
United States, 160 U.S. 70, 76 (1895). Neither of these exceptions
applies here. The court made no finding on endangerment, and the prosecution presented the testimony of Donna Ward and Agent Bruning during its case-in-chief.
17
Although the Supreme Court has not decided the issue, in Logan
it left open the possibility that "particular witnesses, afterwards coming to the knowledge of the government, or becoming necessary by
reason of unexpected developments at the trial, might be permitted,
on special reasons shown, and at the discretion of the court, to testify
in the case." 144 U.S. at 306. In the years following Logan, virtually
every court to have directly addressed the question of after-discovered
witnesses has determined that 3432 does not categorically preclude
such witnesses from testifying at trial. See United States v. Greene,
497 F.2d 1068, 1082 (7th Cir. 1974); United States v. Rosenberg, 195
F.2d 583, 599-600 (2d Cir. 1952); United States v. Fernandez, 172 F.
Supp. 2d 1265, 1279-80 (C.D. Cal. 2001); United States v. Gregory,
266 F. Supp. 484, 487 (D.D.C. 1967).6
We agree with the proposition that 3432 imposes no per se bar
against testimony from witnesses discovered after the prosecutions
witness list is due. That witnesses are sometimes discovered in the
midst of a trial, even after the most diligent pretrial investigation, is
simply a reality of the litigation process. And to construe 3432 to
categorically preclude the testimony of such witnesses in capital trials
would unnecessarily subvert the truth-seeking function of criminal
proceedings, by precluding the introduction at trial of material evidence.
That said, it is beyond question that permitting the prosecution to
present witnesses not included on the pretrial witness list deprives the
defendant of the notice which 3432 is designed to provide. Thus, as
an initial matter, the prosecution should not be entitled to present an
after-discovered trial witness unless it was without fault in failing to
discover the witness prior to the expiration of the deadline established
in 3432. This means that the prosecution may not present a trial witness who was not included on its witness list unless its failure to list
the witness was a good faith omission. See Rosenberg, 195 F.2d at
6
The only contrary decision appears to be United States v. Neverson,

12 D.C. (1 Murphy) 152 (1880), where the court interpreted 3432 "literally" to preclude any witness not on the witness list from testifying at
trial. Importantly, that decision was implicitly abrogated thirteen years
later in United States v. Schneider, 21 D.C. (Tuck. & Cl.) 381, 412
(1893).
18
599-600 (requiring demonstration that prosecution furnished pretrial

witness list in good faith before permitting presentation at trial of
after-discovered witness); see also Greene, 497 F.2d at 1082 (citing
Rosenberg for same proposition). This proposition also means that the
prosecution may not present an after-discovered witness at trial if its
failure to discover the witness prior to the expiration of the deadline
established in 3432 was due to a lack of reasonable diligence in
conducting its pretrial investigation. See Fernandez, 172 F. Supp. 2d
at 1280 ("Because of the societal interest in ensuring that the death
penalty is imposed only as a result of the most reliable and fair procedures our system can offer, 3432 does not excuse sloppiness or negligence on the part of the government."); Gregory, 266 F. Supp. at
487 (requiring showing of diligence and good faith before permitting
presentation of after-discovered witness).
In assessing this contention, we are mindful as well of the purpose
which 3432 seeks to achieve: "to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his
defence." Logan, 144 U.S. at 304; see also Hall, 410 F.2d at 661
(observing that purpose of 3432 is to prevent surprise and provide
defendant with "opportunity to prepare to examine witnesses and to
meet their testimony"). And we recognize that, in certain situations,
permitting a trial witness not included on the prosecutions witness
list to testify against the defendant will undermine this statutory purpose, even when the prosecution is not at fault in failing to include
the witness on its list. Thus, if a defendant can demonstrate that permitting an after-discovered witness to testify would cause him "actual
prejudice" in the form of unfair surprise, a trial court should first consider whether a brief adjournment to allow the defendant to meet the
witnesss testimony would eliminate the prejudice caused by the surprise. United States v. Tipton, 90 F.3d 861, 889 (4th Cir. 1996); see
also Rosenberg, 195 F.2d at 600 (discussing possibility of adjournment upon showing of surprise). Where such a trial adjournment
would fail to cure the prejudice, the court should preclude the witness
from testifying. See Greene, 497 F.2d at 1082 (permitting afterdiscovered witness to testify where defendant could not show prejudice); cf. Tipton, 90 F.3d at 889 (concluding that failure to include
addresses of witnesses does not mandate reversal absent showing of
prejudice); Hall, 410 F.2d at 661 (allowing trial testimony of witnesses not included on list where defendant had knowledge they
19
would testify). In so ruling, we emphasize that the focus of the prejudice inquiry is not the extent to which the after-discovered witnesss
testimony would be damaging to the defendants case; rather, the prejudice must result from the lack of notice that the witness would testify.
In sum, a witness not included on the prosecutions 3432 pretrial
witness list should only be permitted to testify at trial in a capital case
when the prosecution has demonstrated that its failure to include the
witness on the list was in good faith and not the result of a lack of
diligent investigation. Even then, if the defendant can demonstrate
actual prejudice resulting from the lack of pretrial notice that the witness would testify, the trial court should preclude the witness from
testifying unless a brief adjournment of the trial would cure the prejudice. With these principles in mind, we turn to the contention that the
district court erroneously permitted Donna Ward and Agent Bruning
to testify for the prosecution at Fulkss sentencing trial.
2.
First of all, Fulks does not assert that the prosecutions failure to
include Donna Ward and Agent Bruning on its witness list was in bad
faith. He does, however, contend that its failure was due to a lack of
diligent investigation, and that he was actually prejudiced as a result.
We assess these contentions in turn.
a.
With regard to his diligence contention, Fulks contends that, had
the Government conducted a diligent investigation prior to trial, it
would have discovered the November 17, 2004 call to Donna Ward
prior to the expiration of the 3432 deadline for provision of the witness list. Specifically, he asserts that the prosecution should have
done two things prior to trial, either of which would have led to the
discovery of the phone call: (1) travelled to the Wards home in
Waverly, Ohio, to conduct an interview of Amy Ward (who was
included on the witness list), and (2) followed up on the phone card
found in Fulkss possession at the time of his arrest. The district court
explicitly concluded, however, that the prosecution was not dilatory
in discovering the phone call and that a reasonable investigation
20
would not have discovered the call. Because the trial court is in the
best position to evaluate a partys pretrial investigation, and because
this diligence inquiry forms a part of the courts decision on whether
to permit the trial testimony of an after-discovered witness, we review
the courts determination that the prosecution was diligent for abuse
of discretion. Cf. S. States Rack & Fixtures, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 597 (4th Cir. 2003) (observing that determination
whether nondisclosure of evidence was "substantially justified" under
Federal Rule of Civil Procedure 37(c)(1) is reviewed for abuse of discretion).
First, we reject Fulkss contention that a reasonable investigation
on the part of the prosecution necessarily would have included a faceto-face, pretrial interview of Amy Ward. As the prosecution points
out, Amy was a minor witness, who testified for only about five minutes concerning a matter entirely collateral to the main issues in the
case that her purse and cell phone were stolen from a vehicle in
Ohio on November 10, 2002. Moreover, the prosecution had no reason to believe that the Wards had any useful information to offer,
beyond the fact that Amys purse and cell phone had been stolen.
Finally, because of the considerable distance between Waverly, Ohio
(where Amy Ward lived), and Columbia, South Carolina (where
Fulkss trial was conducted), the prosecution made the decision to
conduct a quick pre-testimony interview when Amy and her father
arrived in South Carolina for the trial. The district court did not abuse
its discretion in concluding that this decision was reasonable under
the circumstances.
Fulkss second contention in this regard that the prosecution
should have followed up on the phone card found on Fulks at the time
of his arrest, over nineteen months prior to trial is more troublesome to us than his first contention. For its part, the prosecution
asserts that it had no indication that an inquiry into the calls made
using the phone card would further the primary objectives of its pretrial investigation: proving that Fulks was understating his role in the
multiple offenses committed during the crime spree and countering
his case for mitigation. Tracing the calls Fulks made during the crime
spree, however, could easily have led to individuals and information,
unknown to the prosecution, that would have shed light on Fulkss
role in the offenses. Indeed, the prosecution would have discovered
21
the November 17, 2004 call to Donna Ward, if it had followed up on

the phone card. Nevertheless, as the prosecution points out, this trial
presented unique challenges for everyone, in that the crime spree
spanned several states and touched over a hundred individuals the
prosecution expected to call as witnesses. In these circumstances, we
are unable to conclude that the district court abused its discretion in
concluding that the prosecution was diligent in its pretrial investigation, despite its failure to follow up on the calls made using the phone
card.
b.
Fulks also asserts that the lack of pretrial notice that Donna Ward
and Agent Bruning would testify for the prosecution irreparably prejudiced his defense. Again, because a trial courts vantage point
enhances its ability to discern prejudice to a partys trial presentation,
and because the prejudice inquiry forms part of the courts determination of whether an after-discovered witness should be permitted to
testify, we review for abuse of discretion its conclusion that Fulks suffered no prejudice from the lack of notice that Donna Ward and Agent
Bruning would testify. Cf. S. States Rack & Fixtures, 318 F.3d at 597
(observing that decision whether nondisclosure of evidence was
"harmless" under Federal Rule of Civil Procedure 37(c)(1) is
reviewed for abuse of discretion). And, as an initial matter, we
observe that the district court, in denying Fulkss motion to exclude
the testimony of Donna Ward and Agent Bruning, offered Fulks a
three-day hiatus to prepare to meet their testimony, an offer Fulks
declined as useless. Thus, our inquiry focuses on whether any prejudice to Fulks was such that only outright exclusion of the afterdiscovered witnesses was warranted.
According to Fulks, his trial strategy was twofold: to cast Basham
as the instigator and sole murderer, and to present a strong case of
mitigation based on Fulkss mental problems and troubled childhood.
Thus, defense counsels opening statement emphasized numerous
facts suggesting that Basham was more volatile, dangerous, and controlling, and it outlined the evidence detailing Fulkss miserable childhood and asserted mental deficiencies. Throughout the prosecutions
case-in-chief, Fulkss lawyers crafted the manner in which they crossexamined witnesses to further this strategy. Fulks contends that the
22
testimony concerning the November 17, 2004 phone call completely

undermined the first half of this strategy by tending to show that
Fulks, acting independently of Basham, attempted to lure another victim, Amy Ward. And according to Fulks, the tardiness of the notice
he received that Donna Ward and Agent Bruning would testify for the
prosecution made it impossible for him to switch gears and pursue a
different strategy. He contends that, had he been aware prior to trial
that the prosecution intended to call Donna Ward and Agent Bruning,
he would have pursued a different trial strategy. He would perhaps
have focused exclusively on mitigation, perhaps focused on his
impulsiveness (a trait defense counsel claimed it downplayed at trial
because it was inconsistent with the Basham-as-instigator theory), or
perhaps adhered to his not guilty plea and forced the prosecution to
prove the entirety of its case.
As the prosecution points out, however, Fulks chose to pursue his
trial strategy in the face of an abundance of evidence casting Fulks
as an equal, if not leading, partner in the crime spree. Perhaps most
damagingly, both Hawkins and McGuffin testified that Basham took
orders from Fulks and that Fulks was continually in charge of what
the two of them did. Furthermore, the prosecution presented evidence
suggesting that Fulks instigated the Kentucky prison break because he
was afraid of being sentenced to a lengthy term of imprisonment on
child abuse charges that he learned of the day before the escape. And
Tina Severance testified that Fulks, not Basham, approached her
about obtaining firearms shortly after their escape. Although Basham
also fired shots when Jordan discovered the two of them burglarizing
his sons home, Jordan testified that Fulks fired at him as well.
Finally, throughout the crime spree, Fulks and Basham only travelled
to places with which Fulks was familiar, and they did so with Fulks
behind the wheel. The testimony concerning the November 17, 2002
call to Donna Ward was certainly damaging to Fulkss case, but
viewed in the context of the trial evidence suggesting Fulkss leading
role in the crime spree, it was hardly the silver bullet Fulks makes it
out to be.
Moreover, Fulks was able to present the jury with an alternative
explanation of why he had called Donna Ward on November 17,
2002. Although his defense lawyers felt that the three days offered by
the court was insufficient to prepare Fulks to testify concerning the
23
call, Fulks presented testimony from both Jacobi and Skidmore suggesting that Fulks, in making the call, was trying to contact the young
woman with the butterfly tattoo with whom he had used drugs, and
not attempting to lure Amy Ward. Perhaps more importantly, the
prosecutions version of the story that Fulks was trying to lure
Amy Ward to the hardware store hardly paints Fulks as an effective predator. Even if Fulks had been able to persuade Donna Ward
that her daughter had applied for a job at the hardware store, and that
she had an interview for the position at the unlikely hour of 10:30
p.m., Amy presumably would have known that she had not applied
for such a job and would not have shown up for the purported "interview." That Fulks, acting alone, made such a bungled attempt to bait
another victim might have actually bolstered Fulkss position that he
could not have committed the offenses he was accused of on his own.
Finally, the fact that the defense team had notice, as early as May
21, 2004, of the November 17, 2002 phone call, further undermines
Fulkss claim of prejudicial surprise. As spelled out above, defense
investigator Pete Skidmore learned of the call during his interview of
Donna Ward on May 21, 2004, when he travelled to Waverly, Ohio,
seeking to determine whether Amy was the girl with the butterfly tattoo. Although the defense lawyers do not recall being notified of the
call, they do not dispute that Skidmore advised them of the call via
email. To be sure, of course, our inquiry under 3432 centers on the
surprise occasioned by the prosecutions failure to timely notify the
defendant that a witness will testify; it does not focus on whether the
substance of the testimony itself is a surprise. Nevertheless, although
Fulkss knowledge of the call does not carry the day, it at least cuts
against his claim of surprise, for he should have anticipated that the
prosecution might discover the call and seek to apprise the jury of its
existence.
For the foregoing reasons, the district court did not abuse its discretion in concluding that Fulks suffered no prejudice as a result of the
prosecutions failure to include Donna Ward and Agent Bruning on
its pretrial witness list. Accordingly, the court did not err in permitting them to testify on behalf of the prosecution at trial.
B.
Fulks next asserts that the court erroneously qualified jurors Goehring, Harvey, and Allison over his objection. According to Fulks, the
24
district court was obliged to excuse these jurors for cause because
their responses to questions on voir dire revealed that they would not
properly consider the mitigation evidence offered by Fulks, rendering
them disqualified to sit on his jury under the Supreme Courts decision in Morgan v. Illinois, 504 U.S. 719 (1992). "[B]ecause [the]
inquiry turns in a large part on assessments of demeanor and credibility we cannot duplicate," we review for abuse of discretion the determination of whether a juror is excludable for cause. United States v.
Barnette, 211 F.3d 803, 812 (4th Cir. 2000).
The Supreme Court has ruled that a juror should be excluded for
cause if his "views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and
his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal quotation marks omitted). And, in a capital sentencing proceeding, a
jurors duties include giving meaningful consideration to any mitigating evidence that the defendant can produce. See Eddings v. Oklahoma, 455 U.S. 104, 114 (1982) (observing that sentencer may not
refuse to consider any mitigating factor). Thus, where voir dire examination reveals that a juror "will fail in good faith to consider the evidence of . . . mitigating circumstances as the instructions require him
to do," he is excludable for cause. Morgan, 504 U.S. at 729; see also
Boyde v. California, 494 U.S. 370, 377-78 (1990) (observing that jury
must "be able to consider and give effect to" mitigating evidence);
Tipton, 90 F.3d at 878 (noting that Morgan requires the exclusion of
jurors who "would uniformly reject any and all evidence of mitigating
factors, no matter how instructed on the law"). And "[i]f even one
such juror is empaneled and the death sentence is imposed, the State
is disentitled to execute the sentence." Morgan, 504 U.S. at 729.
Thus, if the district court abused its discretion in determining that
Goehring, Harvey, or Allison would consider the mitigating evidence
offered by Fulks, Fulks is entitled to a new sentencing trial. We assess
its rulings on these jurors seriatim.
1.
The court commenced voir dire of juror Goehring by explaining
that an individual at the extremes, who would either always or never
impose the death penalty, is ineligible to serve on the jury. The court
advised Goehring that it needed jurors "in the middle" who could base
25
their decision on the law and the facts. J.A. 573. Goehring assured the
court that he could do so. In response to questions by defense counsel,
however, Goehring asserted that he would automatically impose the
death penalty on a defendant who had committed a knowing and
intentional murder. But when defense counsel inquired about "circumstances presented about the defendants life and background,
unrelated to the offense," Goehring responded that such circumstances would "weigh[ ] into my decision." Id. at 577-78. He
expressed his belief that "abuse" and like circumstances were relevant, but that "say 90 percent of the time, I mean unless its something
outrageous," he would vote for the death penalty. Id. at 578. Where
there was evidence that the defendant was responsible for two murders, he asserted that mitigating factors would "become less." Id. at
579. In response to questions by the prosecution, Goehring again
asserted that he would consider and "process" mitigating evidence. Id.
at 583. The court qualified Goehring over Fulkss objection.
Although the issue may be close, the court did not abuse its discretion in qualifying Goehring to serve on Fulkss jury. As we have recognized, Morgan only requires the exclusion of jurors who would
categorically reject any mitigating evidence offered by the defendant.
See Tipton, 90 F.3d at 878; see also Yeatts v. Angelone, 166 F.3d 255,
265 (4th Cir. 1999) (observing that only those jurors who would fail
to consider mitigating evidence must be removed for cause).
Although Goehring initially advised defense counsel that he would
automatically impose the death penalty on any defendant who committed a knowing and intentional murder, he also repeatedly asserted
that he would consider mitigating evidence. Nevertheless, according
to Fulks, Goehrings statement that he would vote for the death penalty "90 percent of the time" belies the truth of his assertions that he
would consider mitigating evidence and demonstrates a strong predisposition toward imposing the death penalty. We agree with Fulks that
Goehrings "90 percent" statement reveals that only a strong case for
mitigation would convince him that a convicted murderer deserves
mercy. That fact alone, however, did not require his exclusion, for
although a juror must be willing and able to consider mitigating evidence, he is entitled to "determine the weight to be given" to any such
evidence. Eddings v. Oklahoma, 455 U.S. 104, 115 (1982). Taken as
a whole, Goehrings statements demonstrate that he was willing to
consider the mitigating evidence that Fulks could muster. That he
26
might not accord such evidence as much weight as his fellow jurors
did not render his qualification by the court an abuse of discretion.
2.
The court began juror Harveys voir dire examination in the same
manner as it began Goehrings, explaining to her that it was looking
for jurors between the extremes of those who would always or never
impose the death penalty. It then inquired whether she could consider
mitigating evidence offered by the defendant, after hearing evidence
from the prosecution that the defendant was responsible for two murders. She responded that she could. In response to questioning by
defense counsel, Harvey first asserted that she would impose the
death penalty for any knowing and intentional killing, but then said
"it just depends on what the facts are." J.A. 644. After further inquiry,
she stated that she would automatically impose the death penalty if
the defendant committed two murders, but she seems to have been
confused by the questioning. Although the record is not entirely clear
on this point, it appears that Harvey did not understand that, as a juror
in this case, she would be permitted to consider evidence of a second
murder even though Fulks was only being tried for one. For example,
when Fulkss lawyer explained that she would hear evidence concerning two murders, Harvey responded, "I would be for the case we are
doing." Id. at 647. And when the court asked her whether hearing
about two murders would "cause [her] to become so prejudiced
against the defendant that [she] would not go forward and hear his
case in mitigation before making up [her] mind," Harvey responded,
"No, no, no, no. No. I mean, just because he killed two people, I
would be listening to all the facts but basing it on the one that we
were trying." Id. at 648. By the end of this exchange, Harvey seemed
to grasp the fact that she would be legally permitted to consider both
murders, and she ultimately assured the court that she would impose
the death penalty if warranted by the facts, "but not just because he
killed two people." Id. at 650. The court then qualified Harvey over
Fulkss objection.
The facts with respect to juror Harveys voir dire examination
serve to underscore why the appellate courts provide the district
courts substantial latitude on the qualification of trial jurors. As best
we can surmise from the transcript of the voir dire proceedings, Har-
27
vey was confused by the questions from both the court and defense
counsel, and it is not entirely clear that her confusion had dissipated
by the end of her voir dire examination. Although she gave some
answers that plainly satisfy the Morgan standard, certain other
answers suggested that she may have been unwilling to consider mitigating evidence in the face of evidence that Fulks had committed two
murders. In qualifying Harvey over Fulkss objection, however, the
court remarked that "[i]ts a close call, but as I said, just hearing her
demeanor, I think her answers were the best she could do given her
limited education. She struck me as an honest person who would sincerely try to do her job in the way shes supposed to." J.A. 665. Given
the difficulty in gleaning anything constitutionally relevant from the
cold transcript of Harveys voir dire examination, the courts determination on this point is entitled to our deference. And because Harvey
ultimately asserted that she would not impose the death penalty solely
on the basis of two murders, the court did not abuse its discretion in
qualifying her to sit on Fulkss jury.
3.
The court began voir dire of juror Allison as it had with Goehring
and Harvey, explaining to her that only those individuals "in the middle," not those who would always or never impose the death penalty,
could serve on the jury. J.A. 708-09. During this exchange, Allison
assured the court that she was willing to consider mitigating evidence,
and when questioned about whether she would impose the death penalty for a double murder, she responded, "I I would have to go
listen to the whole case, I wouldnt decide it just on that." Id. at 714.
In response to questioning by the defense lawyers, Allison asserted
that she would not automatically impose the death penalty, explaining
that "Im willing to listen to whatever is said and make my decision,
at that time, thats all I can tell you." Id. at 722. When defense counsel inquired whether she could hold firm to a position opposed by her
fellow jurors, she equivocated, but she later told the court she could
stick with her position if she was "entirely convinced" that her position was correct. Id. at 726. The court qualified Allison over Fulkss
objection.
Fulks contends that, because Allison only advised his lawyers that
she would "listen" to mitigating evidence, she never committed to
28
meaningfully considering such evidence. In so contending, however,

Fulks is reading her voir dire statements too literally. Viewing her
examination as a whole, we think it highly unlikely that Allison meant
to imply, by use of the word "listen," that she intended to listen to the
evidence but entirely disregard it. The trial court which unlike us
was in the best position to view Allisons demeanor and assess her
credibility was convinced that she would carefully weigh all the
evidence. That finding, given Allisons answers on voir dire, is entitled to deference. Finally, Fulks asserts that the trial court should have
disqualified Allison because she equivocated on whether she could
hold true to a position opposed by her fellow jurors. Her later statement to the court that she could hold firm to an unpopular position
if entirely convinced of its correctness, however, cures any deficiency
in her earlier equivocating statement. As a result, Fulkss appellate
contentions on juror Allison must also be rejected.7
7
In addition to challenging the district courts qualification of Goehring, Harvey, and Allison, Fulks asserts that the manner in which the district court conducted their voir dire examinations deprived him of a fair
trial. Specifically, he maintains that the courts questions were too general to satisfy Morgan. In addition to establishing that a capital defendant
is entitled to a jury that will consider mitigating evidence, the Court in
Morgan concluded that such a defendant must also receive the benefit of
a voir dire "adequate" to identify unqualified jurors. See 504 U.S. at 729.
Although the Court concluded that general questions concerning whether
a juror would "follow the law" or be "impartial" are inadequate to protect
a defendants right to a jury that would not automatically impose the
death penalty, see id. at 735, it did not spell out the types of voir dire
questioning that is required. In our Tipton decision, however, we ruled
that inquiring into whether a juror "would always vote to impose the
death penalty in every case where a defendant is found guilty of a capital
offense" would be sufficient to satisfy the Morgan principle. 90 F.3d at
878-79. In this case, the court asked each juror whether he or she would
automatically impose the death penalty for capital murder, inquired into
how each juror would vote when faced with evidence of a double murder, and permitted Fulks to extensively question the prospective jurors
concerning their views on the death penalty. Such an examination was
plainly sufficient to satisfy Morgan.
29
C.
1.
Fulks next asserts that the district court erred in denying his motion
for a new trial on the basis of juror Allisons failure to disclose her
husbands murder in a timely manner. See United States v. Fulks, CR02-992 (D.S.C. Dec. 23, 2004). We review a district courts denial of
a motion for a new trial for abuse of discretion. See United States v.
Stokes, 261 F.3d 496, 502 (4th Cir. 2001). As discussed above, each
prospective juror completed a written questionnaire prior to jury
selection. Question 42 of the questionnaire inquired whether the prospective juror or a close relative had ever been the victim of a serious
crime. Although her husband had been murdered in 1971, just after
the couple was married, Allison left Question 42 blank. Unfortunately, neither the court nor the lawyers for either party inquired during voir dire into why Allison had failed to answer Question 42.8
Fulks first learned of the murder of Allisons husband by virtue of
a July 1, 2004 article in the Myrtle Beach Sun News. On July 9, 2004,
Fulks moved for a new trial, asserting that Allisons failure to disclose
her husbands murder and the related circumstances demonstrated that
she had been biased against him. The district court conducted a hearing on the issue on July 16, 2004, in order to ascertain whether Allison had been actually biased against Fulks or whether the
circumstances surrounding her husbands murder and her failure to
disclose it warranted a finding of implied bias. At the hearing, Allison
advised that her failure to answer Question 42 had been inadvertent.
Moreover, she asserted that she was surprised that she had been
selected for the jury and had hoped that her husbands murder would
lead to her dismissal from the venire. When the court asked whether
there was "even any remote possibility" that her husbands murder
"had some influence in [her] deliberations," Allison responded, "None
at all." J.A. 3046.
8
The prosecution does not contend on appeal that, by failing to inquire

during voir dire into Allisons failure to answer Question 42, Fulks has
waived any claim relating thereto.
30
By its order of December 23, 2004, the court denied Fulkss

motion for a new trial. Applying the test established by the Supreme
Court in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
548 (1984), the court first found that, had Allison fully answered
Question 42, it would not have excluded her for cause. In this respect,
the court observed that it had qualified a juror, over Fulkss objection,
who had been robbed at gunpoint and another whose relative had
been the victim of a murder-suicide. The court also noted that, in
Bashams trial, it had qualified over objection a juror whose daughter
had been raped twenty-four years earlier. Based on its explicit finding
that Allison honestly believed she had disclosed her husbands murder, the court further concluded that Fulks had failed to show that
Allison was actually biased. Finally, the court ruled that the circumstances surrounding her husbands murder and her failure to disclose
it were not extreme enough to warrant a finding of implied bias.
2.
Under the McDonough test, a party is entitled to a new trial on
account of a prospective jurors nondisclosure on voir dire if it can
first demonstrate that a juror failed to answer honestly a
material question on voir dire, and then further show that a
correct response would have provided a valid basis for a
challenge for cause. The motives for concealing information
may vary, but only those reasons that affect a jurors impartiality can truly be said to affect the fairness of a trial.
464 U.S. at 556. As we have heretofore recognized, the Supreme
Court, in spelling out the McDonough test, did not "foreclose the
normal avenue of relief available to a party who is asserting that he
did not have the benefit of an impartial jury." Fitzgerald v. Greene,
150 F.3d 357, 363 (4th Cir. 1998) (quoting McDonough, 464 U.S. at
556 (Blackmun, J., concurring)). After McDonough, "it remains
within a trial courts option, in determining whether a jury was
biased, to order a post-trial hearing at which the movant has the
opportunity to demonstrate actual bias or, in exceptional circumstances, that the facts are such that bias is to be inferred." Id. (quoting McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring)). The
doctrine of implied bias is a principle "limited in application to those
31
extreme situations where the relationship between a prospective juror

and some aspect of the litigation is such that it is highly unlikely that
the average person could remain impartial in his deliberations under
the circumstances." Person v. Miller, 854 F.2d 656, 664 (4th Cir.
1988). Examples of such situations include revelations "that the juror
is a close relative of one of the participants in the trial or the criminal
transaction, or that the juror was a witness or somehow involved in
the criminal transaction." Fitzgerald, 150 F.3d at 365 (quoting Smith
v. Phillips, 455 U.S. 209, 222 (1982) (OConnor, J., concurring)).
Fulks first contends that he is entitled to relief under McDonough.
As discussed above, the district court concluded that Fulks failed to
satisfy the second part of the McDonough test (that a correct response
would have provided a valid basis for a challenge for cause) because
the court would not have excused Allison for cause even if she had
fully answered Question 42. Given this explicit conclusion, Fulkss
McDonough claim necessarily fails unless the court would have committed reversible error that is, abused its discretion in failing to
dismiss Allison for cause. See United States v. Turner, 389 F.3d 111,
115 (4th Cir. 2004) (observing that we review challenges to qualifications of jurors for abuse of discretion). As our precedent makes clear,
a failure to excuse a prospective juror for cause constitutes an abuse
of discretion in only two situations: (1) where a per se rule of disqualification applies; and (2) where the court "demonstrates a clear disregard for the actual bias" of the juror. Id. at 115 (internal quotation
marks omitted). Because there is no per se rule requiring the exclusion of a juror whose close relative was a victim of a crime similar
to that with which a defendant is being tried, see United States v.
Jones, 608 F.2d 1004, 1008 (4th Cir. 1979), Fulks is obliged, in order
to prevail on his McDonough claim, to establish that the court clearly
disregarded Allisons actual bias against Fulks.
On this point, Fulks contends that inconsistencies in Allisons testimony at the July 16, 2004 hearing demonstrated her actual bias
against him. Specifically, he asserts that her explanation for the nondisclosure that she believed she had answered Question 42 and
was thus surprised that she was chosen for jury service is not credible, and reveals that she deliberately concealed her husbands murder
in order to serve on Fulkss jury. The district court, however, explicitly found, based on her "demeanor and body language," that Allison
32
honestly believed she had disclosed her husbands murder. J.A. 3119.
That finding is not clearly erroneous and is entitled to deference.
Fulks is thus not entitled to a new trial under McDonough.
Moreover, the district court correctly concluded that the circumstances surrounding the murder of Allisons husband, and her failure
to disclose it, did not warrant a finding of implied bias. Because it is
generally within a trial courts discretion to qualify a juror whose
close relative was a victim of a crime similar to that with which a
defendant is charged, see Jones, 608 F.2d at 1008, such a circumstance is not, standing alone, sufficiently "extreme" to warrant a finding of implied bias, Fitzgerald, 150 F.3d at 365. And given the courts
finding that Allisons nondisclosure of her husbands murder was
inadvertent, the circumstances surrounding the nondisclosure would
not support a finding of implied bias. The district court thus did not
abuse its discretion in denying Fulkss motion for a new trial.
D.
In his final contention concerning the jurors in his case, Fulks
asserts that the district court improperly qualified jurors Novinger and
Plyler over his objection. As explained above, we review a district
courts qualification of a prospective juror for abuse of discretion, and
we may find such an abuse only if a per se rule required a jurors disqualification or if the court "demonstrate[d] a clear disregard for the
actual bias" of the juror. See Turner, 389 F.3d at 115.
1.
On her written questionnaire submitted prior to the jury selection
proceedings, Novinger indicated that her sister had been a victim of
sexual assault. When questioned on voir dire, Novinger assured the
court that she could be fair, notwithstanding her sisters experience.
The court then qualified Novinger over Fulkss objection. As discussed above, there is no per se rule requiring the exclusion of a juror
whose close relative was a victim of a crime similar to that with
which the defendant is charged. See Jones, 608 F.2d at 1008. Thus,
the court abused its discretion in qualifying Novinger only if it "demonstrated a clear disregard for [her] actual bias" against Fulks. Turner,
389 F.3d at 115. As noted, Novinger assured the court that she could
33
be fair, and Fulks can point to nothing other than her sisters sexual
assault to suggest otherwise. Accordingly, the court did not abuse its
discretion in qualifying Novinger as a juror in Fulkss trial.
2.
Fulkss challenge to the qualification of juror Plyler centers on the
age similarities between Plyler and her daughter, on the one hand, and
Donovan and Burns, on the other. At the time of Fulkss trial, Plyler
was the same age as Donovan had been when she was killed (fortyfour years old) and Plylers daughter was close to the same age as
Burns had been when she was killed (twenty-one and nineteen years
old respectively). When questioned on voir dire concerning her ability
to be impartial, Plyler initially equivocated, advising that "[r]ight now
I could say I would be fine with being neutral, but getting there and
being in front and hearing everything, I dont know. When you put
it that way, maybe not. But right now sitting here I say I could." J.A.
613. When pressed on whether the age similarities between her and
Donovan, and her daughter and Burns, would influence her decisions
as a juror, Plyler asserted that "I would think that, Oh my gosh, my
daughter is that age. Well, gosh, Im that age, that kind of thing, but
I think I I still feel like I could be fair." Id. at 613-14. The court
then qualified Plyler over Fulkss objection.
As no per se rule requires the exclusion of jurors who have been
victims (or whose close relatives have been victims) of a crime similar to that with which the defendant is charged, see Jones, 608 F.2d
at 1008, it follows a fortiori that closeness in age between a prospective juror and her family members, on the one hand, and the victims
of a crime, on the other, does not suffice to mandate that the prospective juror be excused for cause. On the question of whether Plyler was
actually biased against Fulks, it is clear that, although she was initially unsure that she could be neutral, the court credited her final
assertion that she would be fair. That finding is not clearly erroneous,
and the district court thus did not abuse its discretion in qualifying
Plyler as a juror.
E.
Fulks next asserts that the district court erroneously excluded testimony concerning three polygraph examinations administered to him
34
prior to trial. See United States v. Fulks, CR-02-992 (D.S.C. July 7,

2004). The results of those examinations indicated that Fulkss 2003
statements to the FBI had been truthful and that he neither knew of
nor participated in the murders of Burns and Donovan. We review for
abuse of discretion a trial courts rulings concerning the admissibility
of evidence. See United States v. Forrest, 429 F.3d 73, 79 (4th Cir.
2005).
Unfortunately for Fulks, his contention on this point is foreclosed
by our decision in Goins v. Angelone, 226 F.3d 312 (4th Cir. 2000),
abrogated on other grounds by Bell v. Jarvis, 236 F.3d 149 (4th Cir.
2000). In that case, Goins asserted that the prosecutor had committed
a Brady violation by failing to disclose the results of a polygraph test
taken by Barry Scott, who, according to Goins, had committed the
murders with which Goins was charged. See 226 F.3d at 325. In disposing of Goinss Brady claim, we first concluded that, because the
record did not reveal which questions Scott had answered untruthfully, there was no basis on which to conclude that the polygraph
results were favorable to Goins. Id. We also ruled, however, that
Goins could not demonstrate that the polygraph results were "material" because polygraph results were inadmissible for any purpose
under Virginia law. Id. As relevant here, Goins asserted that the Constitution mandated the admissibility of polygraph results during the
sentencing phase of his capital trial. We disposed of this contention
in a footnote: "[a]s the district court noted, . . . [U]nder current controlling precedent, the Constitution does not mandate admission of
polygraph results in capital sentencing proceedings." Id. at 326 n.7
(quoting Goins v. Angelone, 52 F. Supp. 2d 638, 675 (E.D. Va.
1999)). The district court in Goins had derived this conclusion from
United States v. Scheffer, where the Supreme Court upheld, in a noncapital case, the militarys per se ban on the admission of polygraph
results in court-martial proceedings. See 523 U.S. 303, 305 (1998).
Although the district court acknowledged that Scheffer was a noncapital case, it concluded that "Scheffer, with its emphasis on the
unreliability of polygraph evidence and the interest of courts in
excluding such unreliable evidence, certainly suggests that exclusion
of polygraph results would pass constitutional muster in th[e capital]
context, as well." 52 F. Supp. 2d at 675.
Although the issue of the admissibility of polygraph results surfaced in Goins in the context of a Brady claim, we are bound by its
35
conclusion that "the Constitution does not mandate admission of polygraph results in capital sentencing proceedings." 226 F.3d at 326 n.7
(internal quotation marks omitted). That conclusion bears directly on
the question before us now and, because it disposed of Goinss Brady
claim (albeit in the alternative), it cannot be properly characterized as
dicta. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S.
340, 346 n.4 (1986) (observing that alternative holdings are not dicta).
As a result, Goins compels the conclusion that the district court did
not abuse its discretion in denying Fulkss motion to admit the results
of his polygraph examinations.
F.
Fulks next contends that the district court erred in permitting Judy
Ezell, Donovans sister and a prosecution witness, to read aloud to the
jury a 1990 letter from Donovan to Ezell. We, of course, also review
the district courts ruling on this evidentiary issue for abuse of discretion. See Forrest, 429 F.3d at 79 (observing that we review rulings on
admissibility of evidence for abuse of discretion).
As briefly discussed above, the jury heard testimony from Ezell
concerning the sexual abuse she and Donovan had suffered at the
hands of their father. Ezell testified that, in 1990, she had sent a letter
to their father confronting him about the abuse and expressing her
willingness to forgive him. She sent a copy of the letter to Donovan,
and Donovan replied in a letter that Ezell read, over Fulkss objection,
to the jury. In pertinent part, the letter stated as follows:
The letter that you wrote and sent to Leo was so powerful.
You must be on an emotional high. I know I am. Thank you
for including me. I cried when I read it over and over again.
We are healing. Judy, I wish you were here.
***
Before Mom left, she stopped in to say bye . . . . My fear
and anger that I carried for her has been lifted. I feel love
in my heart for her. And I accept her for herself, not someone I wanted her to be. I will be that mother to my inner
child.
36
***
In order for me to continue on this path, I have made yet
another major decision in my life. George [Donovans first
husband] and I are getting divorced. I cannot and will not
live with his abuse. To make a long story short, ha-ha, he
got very sexually violent with me. He also threatened to kill
me when he was done. This was in July, and, of course, he
was drunk. And this is not the first time he has done that.
As I lay there crying and waiting to see what he would do
next, I made a promise to myself that it would be the last
time that he would ever hurt me again, whether he killed me
or I survived. Well, I am here to write, I do not deserve to
be abused in any way, shape, or form. And I wont be by
any man again.
***
Judy, for the first time in my life I have taken back what was
taken from me as a small child. I am in control of my life
and that is a great, powerful feeling.
J.A. 2544-47.
Fulks now contends that the district court abused its discretion in
permitting Ezell to read Donovans letter to the jury, asserting that the
letter was so prejudicial as to deny him due process. In Payne v. Tennessee, the Supreme Court abrogating its prior precedents in Booth
v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers,
490 U.S. 805 (1989) ruled that the Eighth Amendment erects no
per se bar to the admission of victim impact evidence during the sentencing phase of a defendants capital trial. See 501 U.S. 808, 827
(1991). In so ruling, the Court reasoned that the gravity of an offense
depends in part on the harm caused by the defendant to the victim,
to the victims family, and to society. See id. at 819. Thus, evidence
demonstrating that "the victim is an individual whose death represents
a unique loss to society and in particular to his family" is generally
admissible. Id. at 825 (internal quotation marks omitted); see also id.
at 823 (observing that victim impact evidence "is designed to show
. . . each victims uniqueness as an individual human being" (internal
37
quotation marks omitted)). Also generally admissible is evidence concerning the harm caused to the victim herself. Id. at 825. In response
to concerns that victim impact evidence would unnecessarily inflame
the passions of juries, the Court observed that due process would
require exclusion of victim impact evidence that "is so unduly prejudicial that it renders the trial fundamentally unfair." Id.; see also Barnette, 211 F.3d at 818 ("To violate due process, an error must be of
sufficient significance that it denied the defendant the right to a fair
trial.").
As an initial matter, it is clear that Donovans 1990 letter to Ezell
constituted victim impact evidence. First, it served to demonstrate
Donovans uniqueness in that it highlighted struggles Donovan had
faced in her life and the strength with which she confronted them.
Moreover, the jury could have surmised from the letter that, given her
history of abuse and her determination to avoid it in the future, Donovan suffered all the more at the hands of Fulks and Basham (although,
as the district court noted, the letter could cut both ways on this
point). The issue, then, is whether the reading of the letter to the jury
was so unduly prejudicial to Fulks that it offends due process. It is on
this contention that Fulks primarily relies.
Fulks first maintains that the letter violated due process because it
was neither brief nor current. Put simply, this assertion is without
merit. We have held that due process was not violated where seven
of the prosecutions twenty-three witnesses were victim impact witnesses who "presented stories of the victims childhoods, family
experiences, and the trauma of their deaths, and poems reflecting their
deep sadness and regret over their losses." Barnette, 211 F.3d at 818.
In that case, the victim impact evidence formed a substantial portion
of the prosecutions case at sentencing and included evidence relating
as far back as the victims childhood.
Fulks next asserts that Donovans letter to her sister was unreliable
because it was hearsay and not subject to cross-examination. The relevant inquiry, however, is not whether the letter was admissible under
the Federal Rules of Evidence (which do not apply in capital sentencing proceedings), but whether the letter was so unreliable that its
admission violated due process. And, although hearsay, Donovans
letter does not bear the hallmarks of unreliability. To the contrary, it
38
was written in confidence to a close family member, and it was evidently not written with ulterior motives (trickery, in anticipation of
litigation, etc.). Although the letter was written with much emotion,
this fact cuts towards the letters reliability. Cf. Fed. R. Evid. 803(2)
(excepting excited utterances from hearsay rule).
Finally, Fulks contends that the letter improperly focused the jurys
attention on the harm that Donovan had suffered during her rape by
Fulks and Basham. Because victim impact evidence focuses in part
on the harm caused to the victim, see Payne, 501 U.S. at 825, this
contention is also without merit. The district court thus did not abuse
its discretion in permitting Ezell to read Donovans letter to the jury.
G.
In his final appellate contention, Fulks asserts that the Federal
Death Penalty Act (the "FDPA") is unconstitutional because it withholds the protections of the Federal Rules of Evidence (the "Evidence
Rules") from a defendant in a capital sentencing trial, providing only
that a district court may exclude evidence "if its probative value is
outweighed by the danger of creating unfair prejudice, confusing the
issues, or misleading the jury." 18 U.S.C. 3593(c). We review de
novo a district courts ruling concerning the constitutionality of a statute. United States v. Williams, 364 F.3d 556, 559 (4th Cir. 2004).
In presenting his contention that the FDPA is unconstitutional,
Fulks does not assert that the Evidence Rules must apply to the presentation of evidence on the ultimate issue of whether the aggravating
factors present in the case sufficiently outweigh any mitigating factors
such that the death penalty should be imposed. See 3593(e) (providing that sentencer must find aggravating factors sufficiently outweigh
mitigating factors before imposing death sentence). Indeed, the
Supreme Court has already made clear that, in deciding whether a
death-eligible defendant should receive the ultimate penalty, "the jury
[should] have before it all possible relevant information about the
individual defendant whose fate it must determine." Jurek v. Texas,
428 U.S. 262, 276 (1976) (plurality opinion); see also Tuilaepa v.
California, 512 U.S. 967, 972 (1994) (observing that decision
whether death-eligible defendant should receive death penalty "is an
individualized determination on the basis of the character of the indi-
39
vidual and the circumstances of the crime" (internal quotation marks

omitted)). Rather, relying on the Courts ruling in Ring v. Arizona,
536 U.S. 584 (2002), Fulks maintains that the Evidence Rules must
govern the presentation of evidence on the threshold question of
whether a defendant is eligible for the death penalty that is,
whether the prosecution has proven the existence of at least one statutory aggravating factor beyond a reasonable doubt.
In Ring, the Court concluded that the Sixth Amendment right to
trial by jury precludes imposition of the death penalty unless an
aggravating factor necessary to support that sentence is proven to the
jury beyond a reasonable doubt. See 536 U.S. at 609. This conclusion
derived from the principle first enunciated in Apprendi v. New Jersey:
"Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt." 530
U.S. 466, 490 (2000). As the Court explained, regardless of the label
a legislature may place on a particular fact, if the finding of such fact
results in a sentence more severe than that which the defendant could
otherwise receive, the fact "operate[s] as the functional equivalent of
an element of a greater offense," and the Sixth Amendment requires
that it be found by a jury beyond a reasonable doubt. Ring, 536 U.S.
at 609 (internal quotation marks omitted).
Fulks does not (and could not) assert that he was denied the essential right guaranteed by the holding in Ring: that the prosecution be
required to prove to a jury beyond a reasonable doubt the existence
of any aggravating factor necessary to impose the death penalty.
Rather, Fulks contends that, because an aggravating factor is "the
functional equivalent of an element" under Ring, the jurys determination of whether such an aggravating factor exists is closer to a trial
on guilt or innocence than to a traditional sentencing proceeding.
Thus, he asserts, he is constitutionally entitled, with respect to the
jurys determination of whether such an aggravating factor is in existence, to the protections of the Evidence Rules.
Even if the Court in Ring mandated that a defendant receive, with
respect to a jury finding of an aggravating factor, the protections
applicable to a guilt-or-innocence trial, it does not follow that the
defendant is entitled to the protections of the Evidence Rules. The
40
Evidence Rules "do not set forth the constitutional parameters of

admissible evidence, nor does a criminal defendant have a constitutional right to have the [Evidence Rules] in place." United States v.
Fell, 360 F.3d 135, 144 (2d Cir. 2004). Indeed, as a general matter,
the Evidence Rules provide greater protection than that which is constitutionally mandated. See, e.g., Dowling v. United States, 493 U.S.
342, 352-54 (1990) (ruling that due process was not violated by introduction of evidence made inadmissible under Rule 404(b) of the Evidence Rules).
Moreover, the FDPA provides a capital defendant with constitutionally sufficient evidentiary protections. Even without the protections of the Evidence Rules, "it remains for the [district] court, in the
exercise of its judgment and discretion, to ensure that unconstitutional
evidence otherwise admissible under applicable evidentiary rules is
excluded from trial." Fell, 360 F.3d at 145. The FDPA provides a
ready mechanism for a trial court to fulfill this function, permitting
the exclusion of evidence "if its probative value is outweighed by the
danger of creating unfair prejudice, confusing the issues, or misleading the jury." 3593(c). We must rely on the trial courts, in applying
this provision, to exclude evidence that transgresses a defendants
constitutional rights. For these reasons, the evidentiary standard of the
FDPA withstands constitutional scrutiny. See United States v. Lee,
374 F.3d 637, 648 (8th Cir. 2004) (reaching same conclusion); Fell,
360 F.3d at 138 (same).
III.
Pursuant to the foregoing, Fulkss contentions of error are rejected,
and the judgment of the district court is affirmed.
AFFIRMED
WILLIAMS, Circuit Judge, concurring:
I agree with the judgment reached by the majority and concur in
Parts I and II.A.2.b. - III of the majority opinion. While I agree with
the result reached in the remainder, I disagree with my good colleagues interpretation of 18 U.S.C.A. 3432 (West 2000). I would
41
instead hold that the district court contravened the statute by allowing
Donna Ward and Agent Bruning to testify, but that the error was
harmless. I write separately to emphasize the correct reading of the
statute, which is "too plain to be misunderstood." Logan v. United
States, 144 U.S. 263, 304 (1892), abrogated on other grounds by
Witherspoon v. Illinois, 391 U.S. 510 (1968).
Section 3432 provides in full:
A person charged with treason or other capital offense shall
at least three entire days before commencement of trial be
furnished with a copy of the indictment and a list of the
veniremen, and of the witnesses to be produced on the trial
for proving the indictment, stating the place of abode of
each veniremen and witness, except that such list of the
veniremen and witnesses need not be furnished if the court
finds by a preponderance of the evidence that providing the
list may jeopardize the life or safety of any person.
18 U.S.C.A. 3432.1 The majority holds that this section is not violated when the prosecution calls to the stand a newly discovered witness if "the prosecution has demonstrated that its failure to include the
witness on the list was in good faith and not the result of a lack of
diligent investigation" and the defendant cannot demonstrate actual
prejudice. Ante at 19. This exception is not found in the text of the
statute and is an entirely judge-made creation.2
1
I assume without deciding (as neither party raises the issue) that the
statute applies equally to the underlying guilt trial as well as the "separate sentencing hearing to determine the punishment to be imposed." 18
U.S.C.A. 3593 (West 2000).
2
I concede, and the majority notes, that the weight of authority is in
favor of recognizing a judge-created good faith exception. I note, however, that the reasoning behind this authority is not grounded on the text
of the statute, but instead on one faulty 1893 opinion from the Supreme
Court of the District of Columbia. In United States v. Schneider, 1893
WL 11435 (D.C. Jan. 9, 1893), the court noted that "the statute never
was intended to preclude the [Government] from making use of any
material testimony discovered during the progress of the trial." Id. at *20.
For this proposition, the court did not cite a single source or refer to the
text of the statute. Rather, it merely offered its view as its "opinion." Id.
42
The only exception to the statutes absolute rule that a listing of

"the witnesses . . . for proving the indictment" shall be provided three
days prior to trial is where production of "the list may jeopardize the
life or safety of any person." 18 U.S.C.A. 3432. Thus, the plain language of the statute makes no exception for good faith or due diligence on the part of the Government. Indeed, the statute "is . . .
mandatory to the [G]overnment; and its purpose is to inform the
defendant of the testimony which he will have to meet, and to enable
him to prepare his defense." Logan, 144 U.S. at 304. Thus, according
to Logan, Congresss concern in passing the statute was with allowing
defendants facing possible sentences of death sufficiently to prepare
their defense, regardless of whether the statute precluded the Government from introducing some relevant testimony.
In this case, the Government provided a list of most of the witnesses it ultimately produced for proving the indictment in ample time
under the statute. The statute, however, requires that the defendant be
provided with a list "of the witnesses to be produced on the trial for
proving the indictment." 18 U.S.C.A. 3432 (emphasis added). Thus,
More troubling, in offering this opinion, the Schneider court ignored
(without even recognizing) the holding of United States v. Neverson,
1880 WL 18716 (D.C. June 7, 1880). In Neverson, the same court held
that the statute is violated when notice of a witness is not "given until
after the trial beg[ins]." Id. at *13. But see id. at *20 (MacArthur, J., concurring) (disagreeing and arguing that the statute should not apply when
the Government "us[es] the utmost diligence and exercis[es] the utmost
good faith"). Schneider also ignored the Supreme Courts language in
Logan v. United States, 144 U.S. 263, 304 (1892), abrogated on other
grounds by Witherspoon v. Illinois, 391 U.S. 510 (1968), which recognized that the statute was "mandatory" and "its purpose is to inform the
defendant of the testimony which he will have to meet, and to enable him
to prepare his defense." Id.
To compound matters, both circuit courts that have (before today)
since recognized the judge-created exceptions (either as alternative holdings or dicta) have primarily relied on Schneiders unsupported language.
See United States v. Green, 497 F.2d 1068, 1082 (7th Cir. 1974) (quoting
Schneiders language); United States v. Rosenberg, 195 F.2d 583, 599600 (2d Cir. 1952) (same).
43
the statute is no more "silent" on the question of after-discovered witnesses that are offered to prove the indictment, as the majority concludes, ante at 16, than it is "silent" on the question of priordiscovered witnesses that are offered to prove the indictment. It
speaks only of the witnesses, and by using the definite article "the"
without relevant exception, the statutes plain language calls for a list
of each and every witness to be produced at trial "for proving the
indictment," id., not "the witnesses for proving the indictment that to
date have been discovered."
The statute is unmistakingly clear that if the Government is to call
a witness for the purpose of proving the indictment, the name of that
witness must be provided to the capital defendant at least three entire
days prior to commencement of trial unless providing the name would
jeopardize personal safety. Cf. Goldsby v. United States, 160 U.S. 70,
76 (1895) (allowing an undisclosed rebuttal witness to testify because
the statutes combination of the phrase "the witnesses" with the
phrase "for proving the indictment" "clearly refer[s] to the witnesses
relied upon the by prosecution to establish the charge [and does] not
extend to such witnesses as may be rendered necessary for rebuttal
purposes." (emphasis added)). Unless the result reached from following Congresss plain language is absurd (which surely it is not), I
think it best for the Court to "interpret[ ] 3432 literally," ante at
17 n.6, especially when that literal interpretation is plainly in harmony
with what the Supreme Court has explained is the purpose of the statute to allow a capital defendant to prepare his defense. Logan, 144
U.S. at 304.
Aside from the plain language, Congresss relatively recent willingness to amend this statute with an explicit exception further counsels against reading judge-made exceptions into the statute. In 1994,
Congress added the exception to the statutes mandatory directive for
when production of "the list [of witnesses and veniremen] may jeopardize the life or safety of any person." Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322, Tit. VI, 60025,
108 Stat. 1982 (1994). The fact that a recent Congress was willing to
amend 3432 with this exception should allay fears that Congress
will fail to act in the future if it like most of the Article III courts
that have considered the question concludes that application of the
plain meaning of the statute "would unnecessarily subvert the truth-
44
seeking function of criminal proceedings." Ante at 17. Moreover,

when "Congress explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in the
absence of evidence of a contrary legislative intent." United States v.
Smith, 499 U.S. 160, 167 (1991) (emphasis added and internal quotation marks omitted).
Finally, I note that I share the majoritys instinct that the exception
it recognizes is grounded in sound judgment and makes perfect sense
as a policy matter. Nonetheless, I believe it is Congresss place not
ours to make policy and if it so chooses, to amend the statute, as
it has shown a willingness to do as recently as 1994. See Sigmon Coal
Co., Inc. v. Apfel, 226 F.3d 291, 308 (4th Cir. 2000), affd, 534 U.S.
438 (2002) ("[E]ven if . . . the literal text of the statute produces a
result that is, arguably, somewhat anomalous we are not simply
free to ignore unambiguous language because we can imagine a preferable version."). I also note that even under the plain meaning of
3432, the Government is not without any recourse because it often
will be able to present the after-discovered witness as a rebuttal witness, as the Government contends it could have done in this case. (See
Appellees Br. at 55 (arguing that Ward and Bruning "would have
made not only appropriate, but also devastating, rebuttal witnesses")).
In short, I would hold that the district court erred in allowing the
two witnesses that were not included on the witness list to testify during the prosecutions case-in-chief. Nonetheless, I would find the
error harmless after undertaking a traditional Rule 52(a) harmlessness
analysis in order "to determine whether the error was prejudicial."
United States v. Olano, 507 U.S. 725, 734 (1993). I believe that the
Government, as evidenced by the majoritys persuasive discussion of
lack of prejudice in Part II.A.2.b., has met its burden of proving harmlessness. Accordingly, I concur in the judgment reached by the majority.

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PUBLISHED

UNITED STATES COURT OF APPEALS

Appeal from the United States District Court

Affirmed by published opinion. Judge King wrote the opinion, in

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

By the following day, November 5, 2002, Fulks and Basham had

UNITED STATES v. FULKS

The four of them then drove Severances van to Sturgis, Michigan,

UNITED STATES v. FULKS

In connection with Burnss death, Basham and Fulks each received

UNITED STATES v. FULKS

Fulks and Basham following in Severances van. Fulks and Basham

UNITED STATES v. FULKS

In addition to the carjacking and kidnapping offenses, Fulks and

UNITED STATES v. FULKS

On September 12, 2003, the prosecution notified Fulks and

UNITED STATES v. FULKS

Amy at a local hardware store that evening at 10:30 p.m. to discuss

UNITED STATES v. FULKS

In response, defense counsel countered in its opening statement

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

In addition to analyzing each of Fulkss appellate contentions, we are

UNITED STATES v. FULKS

3432. See United States v. Fulks, CR-02-992 (D.S.C. June 23,

UNITED STATES v. FULKS

finds by a preponderance of the evidence that providing the

As 3432 makes clear, the prosecution is not required to provide the

UNITED STATES v. FULKS

The only contrary decision appears to be United States v. Neverson,

UNITED STATES v. FULKS

599-600 (requiring demonstration that prosecution furnished pretrial

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

the November 17, 2004 call to Donna Ward, if it had followed up on

UNITED STATES v. FULKS

testimony concerning the November 17, 2004 phone call completely

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

meaningfully considering such evidence. In so contending, however,

UNITED STATES v. FULKS

The prosecution does not contend on appeal that, by failing to inquire

UNITED STATES v. FULKS

By its order of December 23, 2004, the court denied Fulkss

UNITED STATES v. FULKS

extreme situations where the relationship between a prospective juror

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

prior to trial. See United States v. Fulks, CR-02-992 (D.S.C. July 7,

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS

UNITED STATES v. FULKS